(,1 2 1/,1( · 10. JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT ADVEN-TURE 40 (1984). 11. ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 42 (1990). Cassese adds

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The Past and Future of the Separation ofHuman Rights into Categories

STEPHEN P. MARKS*

Introduction ...................................................................................... 209I. Conceptual Distinctions Between Categories of Human Rights..215

A . Im m utability ...................................................................... 215B . C ultural B ias ...................................................................... 218C. Role of the State in Realizing Positive and Negative

R ights .............................................................................. 220D. Political Ideology Favoring Freedom or Equality ............. 224

II. Policy-based Distinctions Between Categories of HumanR ights ..................................................................................... 227A . Im plem entation ................................................................. 227B . Justiciability ...................................................................... 228C . V iolations .......................................................................... 23 1D . R esources .......................................................................... 234

C onclu sion ....................................................................................... 238

INTRODUCTION

It is a commonplace to recall that the Universal Declaration ofHuman Rights (UDHR) integrated civil and political rights (CPR)with economic, social, and cultural rights (ESCR), and that the twoInternational Covenants separated them.

* Franqois-Xavier Bagnoud Professor of Health and Human Rights, Harvard School ofPublic Health.

HeinOnline -- 24 Md. J. Int'l L. 209 2009

MARYLAND JOURNAL OF INTERNATIONAL LAW [Vol. 24:209

Reflecting Cold War divisions, stress on one or the other of thesetwo traditional categories tended to reveal preferences for neo-liberalor social democratic understandings of human rights, when it was notmore blatantly reflective of competition between the NATO andWarsaw Pact (plus "Non-Aligned") countries, a sort of North-Westvs. East-South ideological split. This article explores how the sep-aration of categories of rights has lost its pertinence in the firstdecade of the 2 1st century. My purpose is to show how the separationinto two categories is perhaps a convenient taxonomy for some, butsubject to serious challenge from the perspectives of political history,the theory of rights, and contemporary policy.

While human rights are accepted as universal because of theresonance of the underlying principles with all major religious andphilosophical traditions, many of the assumptions underlying theseparation of economic, social, and cultural rights from civil andpolitical rights derive from interpretations of the philosophical ideasand revolutionary practices of 1 8 th century Europe and America.1 Afew reminders of the legacy of that period may dispel the historicallyinaccurate claim that those rights falling within today's category ofeconomic, social, and cultural were unknown to the Enlightenmentand absent from the French Declarations of the 18th century.

First of all, to the extent that the essence of these rights isdistributive justice or the exigencies of equality, they are echoed inthe second element of the revolutionary triad ("libert6, 6galit ,fraternit6"). Surprising though it may be to anyone who assumes theEnlightenment was exclusively about liberty from state abuse, itshould be recalled that, in the mind of many representatives of theThird Estate-the representatives of the commoners and thebourgeoisie in the Estates-General, which became the ConstituentAssembly, and promulgated the Declaration on the Rights of Manand the Citizen in August 1789-human rights began with the rightswe call today economic, social, and cultural. Abb6 Siey~s, rep-resentative of the Third Estate from Nemours in the Estates General,presented a theory of human nature based on the fulfillment of humanneeds: "Man is, by nature, subject to needs; but, by nature, has themeans to satisfy them.... Individual means are linked by nature to

1. See Stephen P. Marks, From the "Single Confused Page" to the "Decalogue for SixBillion Persons": The Roots of the Universal Declaration of Human Rights in the FrenchRevolution, 20 HuM. RTS. Q. 459 (1998).


2009] THE SEPARATION OF HUMAN RIGHTS INTO CATEGORIES

individual needs. Whoever is responsible for needs must thereforefreely dispose of the means."'2 He further discussed various forms ofinequality and explained that a purpose of society is to develop themoral and physical capacities of its members which it augmentsthrough the "inestimable collaboration of public works and assist-ance."3 His draft declaration of rights of February 1789' refers to"natural and social rights," including the human right of each citizen"unable to satisfy his needs to the assistance of his fellow citizens."5

In a remarkably progressive analysis, anticipating class analysis of acentury later, the introduction attributes the "war between thegovernment and the nation, or more exactly between the governmentand the people" to ignorance and greed. It seeks to go beyond thecessation of abuse of power and ameliorate "all social relations" and"establish the reign of justice among all the different classes ofcitizens."6 After a first article stating the right to do freely what doesnot harm others, the Nemours draft declaration of rights enumerateswhat we call today welfare rights: the right to assistance from others;free assistance to children, the weak, and disabled; non-interruptionduring work; adequate salary for work; and the right to keep what onelegitimately acquired through work, donation, or inheritance. Onlyafter these rights come protection against violence, expropriation, andviolations of liberty, property, security, and rules of criminal dueprocess. Then come provisions on income taxes and finally freedomof expression. The second chapter of the Nemours draft is devoted topublic education, which must be "highly favored" by the state.7Thus, although the Declaration of 1789 is limited in its concern withequality to matters of taxation and property, the concerns of equalityand social justice were voiced, and might have found expression inthe text had more time been spent on it. The Dictionnaire Critique dela Rvolution Franqaise notes that, while the Declaration of 1793contains explicit social rights, "almost half of the drafts of 1789include assistance, even work, among the primordial guaranties that a

2. Abb6 Siey~s, Pr~liminaire de la Constitution, Reconnaissance et Exposition Raisonnedes Droits de l'Homme et du Citoyen (July 20-21, 1789), reprinted in STtPHANE RIALS, LADtCLARATION DES DROITS DE L'HOMME ET DU CITOYEN 591, 593-94 (1989) (translation byauthor).

3. Id. at 595-99 (translation by author).4. Id. at 550-55 (translation by author).5. Id. at 605 (Article XXV) (translation by author).6. Id. at 551 (translation by author).7. Id. at 555 (translation by author).



collectivity owes to its members."8

This heritage, along with the achievements of European socialismand of the Soviet Union, influenced the drafting of the UniversalDeclaration. Albert Verdoodt wrote:

Mr. Cassin took advantage of his background as an eminentjurist and his special talent for reconciling the liberalism of theFrench Declaration of 1789 and the socialism of modemconstitutions, especially that of the USSR. He succeeded inmaintaining, in the declaration, both all the traditional rightsand the new socio-economic rights. 9

According to John Humphrey, the Canadian U.N. staff memberwho contributed to the drafting of the Universal Declaration, his owndraft "attempted to combine humanitarian liberalism with socialdemocracy."'" The direct impact of the socialist countries on the textis most noticeable in the provisions on duties to society and oneconomic, social, and cultural rights." It was not exclusively theSoviet bloc delegates that insisted on including these rights in theUniversal Declaration. Indeed, several delegates referred to Roose-velt's Four Freedoms (1941), which included freedom from want ona par with freedom from fear, freedom of religion, and freedom ofexpression. 2 The United States had even proposed an internationalbill of human rights in 1942, which states in Article I that the purposeof government was common welfare in an interdependent world, andin Article II that "[a]ll persons ... have the right to enjoy such

8. DICTIONNAIRE CRITIQUE DE LA RIVOLUTION FRANCAISE 121-22 (Frangois Furet &Mona Ozouf eds., 1988) [hereinafter Dictionnaire Critique]. The Declaration of 1793 gaveexplicit reference to the rights to social protection and education. Article 21, for example,refers to public assistance as a "sacred debt" and affirms that society must provide for thesubsistence of unfortunate citizens either by finding work for them or by assuring a means ofexistence for those unable to work.

9. ALBERT VERDOODT, NAISSANCE ET SIGNIFICATION DE LA DtCLARATION UNIVERSELLEDES DROITS DE L'HOMME 49 (1964) (translation by author). As was pointed out supra,Verdoodt is not entirely accurate in considering social and economic rights as "new."

10. JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT ADVEN-TURE 40 (1984).

11. ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 42 (1990). Cassese addsthe reference to the role of individuals "as members of society," for example, in Article 22on social security, and the exclusion of activities contrary to the purposes and principles ofthe U.N. (Article 29(3)) or destructive of rights (Article 30).

12. Cassese points out, drawing on leading historians, that Roosevelt meant by freedomfrom want-an expression he borrowed from a journalist-the elimination of certain culturaland commercial barriers between nations, rather than its current meaning of realization ofeconomic, social, and cultural rights. Id. at 30.

212



minimum standards of economic, social and cultural well-being asthe resources of the country, effectively used, are capable ofsustaining."' 3 Eleanor Roosevelt's motivation for including eco-nomic, social, and cultural rights was, of course, the welfare com-mitments of her husband's administration and his proclaiming offreedom from want among the Four Freedoms. However, it was alsoto avoid the Soviet Union taking credit for the inclusion of theserights, for which its delegate argued long and hard. William Koreyexplains that "she must have been aware that socialist principles werebeing advanced and implemented in numerous Western societies. Tohave resisted this trend would have abdicated leadership in theinternational community to the Soviet bloc, which was alreadytrumpeting its strong advocacy of economic, social and culturalrights."' 4 As Mary Ann Glendon notes, "[c]ontrary to later belief, thecountries within the Soviet sphere of influence were neither alone northe most vigorous in pushing for the inclusion of social and economicrights.... [N]o nation opposed them in principle."' 5

While Eleanor Roosevelt maintained that economic, social, andcultural rights could not be regarded as justiciable in the same way ascivil and political rights, she agreed to their inclusion in the UniversalDeclaration. However, Latin American delegates were particularlyforceful about the inclusion of these rights, as was Ren& Cassin ofFrance. The views expressed in the debate and the placement ofthese rights in the overall arrangement of the articles neverthelessreveal a lower ranking than civil and political rights, which is similar

13. It is also worth recalling that President Roosevelt, in his State of the Union Messageof 1944, said that:

We have come to a clear realization of the fact that true individual freedom cannotexist without economic security and independence. "Necessitous men are not freemen." People who are hungry and out of a job are the stuff of which dictatorshipsare made. In our day these economic truths have become accepted as self-evident.We have accepted, so to speak, a second Bill of Rights under which a new basis ofsecurity and prosperity can be established for all-regardless of station, race, orcreed.

Franklin D. Roosevelt, President of the United States, Message to Congress on the State ofthe Union (Jan. 11, 1944), in 13 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D.ROOSEVELT 40-42 (Samuel I. Rosenman ed., 1950). See also Philip Alston, U.S.Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for anEntirely New Strategy, 84 AM. J. INT'L L. 388 n.99 (1990).

14. William Korey, Eleanor Roosevelt and the Universal Declaration of Human Rights,in ELEANOR ROOSEVELT: HER DAY 21 (A. David Gurewitsch ed., 1973).

15. MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THEUNIVERSAL DECLARATION OF HUMAN RIGHTS 185 (2001).



to the French revolutionary declarations. Post-1948 developments inthe U.N. have considerably expanded the normative and institutionalspace for economic, social, and cultural rights.

A combination of Western traditions going back at least to theFrench Revolution, reflected in numerous national constitutions ofthe late 19th and early 2 0 th centuries, in the 1919 International LabourOrganization (ILO) constitution, in Roosevelt's second bill of rights,and in the draft international bill of rights prepared by a committee ofthe American Law Institute, on the one hand, and socialist thinkingand the legal system of Soviet-bloc countries, on the other, made itpossible for the 1948 text to contain both sets of rights. The doctrineof their equal value has been a canon of the United Nations eversince, in spite of practice to the contrary. That canon is reflected innumerous statements of U.N. bodies," General Assembly resolu-tions, 7 and notably the declaration issued at the close of the WorldConference on Human Rights in 1993, which proclaimed: "Allhuman rights are universal, indivisible and interdependent and inter-related. The international community must treat human rightsglobally in a fair and equal manner, on the same footing, and with thesame emphasis."18 The significance of this canon for the traditionalseparation of categories of human rights calls for a rethinking of therationale behind the decision of the General Assembly in 1951,"largely on ideological grounds,"' 9 that the Commission should draftseparate covenants for each of the groups of rights. Already in 1950Mrs. Roosevelt had felt obliged by the "growth of isolationism and

16. For example, a UNDP policy paper has outlined UNDP's strategy for integratinghuman rights into sustainable human development and called for a "universal and holistic[approach], stressing the indivisibility and interrelatedness of all human rights-economic,social, cultural, civil and political." U.N. Development Programme, Integrating HumanRights with Sustainable Human Development, at 16 (Jan. 1998), available athttp://www.undp.org/govemance/docs/HRPub-policy5.htm.

17. As early as December 4, 1950 the General Assembly adopted Resolution 421E (V),U.N.Doc. A/1775, affirming that "the enjoyment of civil and political freedoms and ofeconomic, social and cultural rights are interconnected and interdependent. . . . [W]hendeprived of economic, social and cultural rights man does not represent the human personwhom the Universal Declaration regards as the ideal of the free man." In a 1977 resolution,the General Assembly enumerated the concepts which should guide all future work of theU.N. on human rights, including "equal attention and urgent consideration should be given tothe implementation, promotion and protection of both" categories of human rights. G.A.Res. 32/130, 1(a), U.N. Doc. A/RES/32/130 (Dec. 16, 1977).

18. World Conference on Human Rights, June 14-25, 1993, Vienna Declaration andProgramme ofAction, 5, U.N. Doc. A/CONF.157/23 (July 12, 1993).

19. HUMPHREY, supra note 10, at 107.



anticommunism" at home to favor including only civil and politicalrights in the Covenant."° The U.K. lost interest and eventually theGeneral Assembly reached its decision to have the Commission drafttwo covenants, to be treated equally and opened for signature on thesame date. As Mary Ann Glendon describes it, "[iln practical termsthe move made sense, but separating the political/civil liberties fromthe social/economic rights had a heavy cost: it undercut the Dec-laration's message that one set of values could not long endurewithout the other."''2

Two decades after the end of the Cold War, the distinctions aredisappearing in theory and practice. The traditional distinctions werebased on several philosophical and practical considerations, rangingfrom the concept of negative and positive rights to resourceallocations and institutional issues. On closer examination of therationale for separating categories of human rights, we can identify-at the risk of oversimplifying-four philosophical or conceptualfeatures and four practical or policy-based features

I. CONCEPTUAL DISTINCTIONS BETWEENCATEGORIES OF HUMAN RIGHTS

The conceptual bases relate to immutability, cultural bias, role ofthe state with respect to positive and negative rights, and politicalideology favoring freedom or equality.

A. ImmutabilityAt the theoretical level, the case is often made that civil and

political rights are permanent and immutable, and are not subject tochanging circumstances as they relate to the permanent nature ofhuman beings. Those who hold this view stress the priority of civiland political rights for human life and dignity, which are timeless,compared to economic, social, and cultural rights, which areconditional on societal development and programmatic realizationover time. This theory is strongly influenced by natural law, whichattributes the permanence of human rights to the natural condition ofhuman beings-that is, all humans have the same nature andtherefore the same rights. Since human nature does not change, thenneither do human rights. A second feature of natural law supportive

20. GLENDON, supra note 15, at 196.21. Id. at 202.



of permanence of rights is the derivation of rights from naturaljustice, from an abstract appeal to Reason, or from a belief that theserights are "God-given" or correspond to the Will of a DivinePresence (for those who adhere to an organized religion), or the Willof an abstract Deity (for those who adhere to the deist position).From all these perspectives, it is inconceivable that the definition ofvirtue as derived from these forces greater than humans wouldchange over time, although the ability of human to apprehend thehigher Will may be perfected.

The strength of the arguments for permanence based on humannature depends on a belief in an abstract and unknowable source ofjustice accepted as a matter of faith rather than the scrutiny ofscientific investigation. The concept of human nature, however, hasa place in the study of evolutionary biology and human behavior.The question for evolutionary biology is whether there is acomparative reproductive advantage of propensities such as empathyand altruism, which would explain the emergence of codes of humansocial behavior such as human rights. There may be geneticallydetermined basic human instincts of survival of the species andmanifestations of empathy and altruism that evolutionary biology isonly beginning to explain.22 Since human evolution is driven byreproductive selfishness, one could wonder why the human specieswould develop any ethical system, like that of human rights,according to which individuals manifest feeling for the suffering ofothers (empathy) and-even more surprising-act in self-sacrificingways for the benefit of others without achieving any noticeablereproductive advantage. And yet, as Paul Ehrlich notes in HumanNatures, "empathy and altruism often exist where the chances for anyreturn for the altruist are nil."23 Natural selection does not providethe answer to moral behavior as "there aren't enough genes to codethe various required behaviors," but rather "cultural evolution is thesource of ethics"24 and therefore of human rights.

The second scientific approach to understanding human natureholds that moral behavior is a human, social product developed by aprocess of biological and social evolution (associated with Hume, andalso sentimentalist, subjectivist, or naturalistic approaches) or as a

22. See PAUL R. EHRLICH, HUMAN NATURES: GENES, CULTURES, AND THE HUMANPROSPECT 305-31 (2000).

23. Id. at 312.24. Id. at 317.



sociological pattern of rule setting (as in the sociological theory oflaw and the work of Weber). This approach includes the con-tractarian notion that individuals in a society accept rules fromlegitimate authority in exchange for security and economic advantage(as in Rawls). In legend, literature, religion, and political thought,justice and eventually the concept of human rights became sociallyconstructed over time into complex webs of social interaction strivingtoward a social order in which human beings are treated fairly asindividuals and collectivities. The best-known histories of the humanrights movement 25 tend to begin with the ancient religions andsocieties and trace the evolution of understanding of human rightsover time, reinforcing the idea that moral codes evolve withcircumstances.

Whether one uses a biological or a sociological lens to discern theorigin of human rights in society, it is indisputable that the content ofthe norms evolves over time. Slavery, torture, and subjugation ofwomen and colonized populations are among the most obviouspractices that were regarded as natural and just for long periods ofhuman existence. Clear human rights norms have emerged in recenttimes to exclude these practices from acceptable human behavior.Thus, this progressive awareness of new understandings of accept-able treatment of humans and exigencies of social arrangements,including legislation and enforcement, explains the changes over timeof the catalogue of civil and political as well as economic, social, andcultural rights. Given these explanations of the evolution of humanrights norms, there is no basis for considering that one categoryreflects values more timeless than the other. It is tempting to cite lifeand bodily integrity as so basic that they have always been protectedin human society and that certain social benefits or cultural practicesare only recently regarded as deserving of protection, but historyteaches us otherwise. The social norm of caring for the needy has along history while the prohibition of deliberate infliction of pain toobtain information is relatively recent, thus upending the assumptionthat civil and political rights are constant and economic, social, andcultural are "new." It is therefore disputable to justify the distinctionbetween categories of rights on the relative permanence of the onecompared to the other.

25. See PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS:VISIONS SEEN (2d ed. 2003); HERSCH LAUTERPACHT, INTERNATIONAL LAW AND HUMANRIGHTS, (1950).



B. Cultural BiasAnother justification for the distinction between categories is

based on cultural or civilizational bias, the concept of the auto-nomous individual being characteristic of Western modernism andrequiring that civil and political rights protect that autonomy, incontradistinction to other civilizations that value the group, whetherthe Asian values of duty to the family and king (state), or thedictatorship of the proletariat in societies that claim to be communist,or communal values in African societies. From this perspective, civiland political rights are Western and made part of constitutionaldemocratic regimes and of the expectations of the citizens, althoughthey may be exported to other societies that are modernizing, eitherby building new nations out of a colonial legacy, which made themfamiliar with these rights, or in responding to the pressures ofglobalizing markets and ideas, as in China, and adapting their legalpractices and constitutional norms as a result. According to thisview, a priority may have been placed on economic, social andcultural rights in non-Western societies either because it is the duty ofthe beneficent Asian king (and the successor state) to provide for hissubjects, or because the dictates of charity in the religion or beliefsystem of the society, or because the victory of the proletariat in theclass struggle so requires.

However, this approach, which has been articulated in the "clashof civilizations" thesis, tends to consider large zones of humanhabitation as excessively monolithic. Drawing on a classification ofcivilizations as Western, Latin American, African, Islamic, Sinic,Hindu, Orthodox, Buddhist, and Japanese, Samuel Huntington arguesthat "individualism remains a distinguishing mark of the West amongtwentieth-century civilizations."26 Huntington considers the Western"tradition of individual rights and liberties unique among civilizedsocieties."" He agrees with Bilahari Kausikan of Singapore that theWest, which "wrote the Universal Declaration of Human Rights," haslost its leverage, especially over Asian countries.28 Huntington'sthesis is flawed in several respects. First, as Thomas Franck pointsout, he erroneously assumes that the most radically conservative

26. SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE REMAKING OFWORLD ORDER 71 (1996).

27. Id.28. Id. at 194; see also Surya Prakash Sinha, The Axiology of the International Bill of

Human Rights, 1 PACE Y.B. INT'L L. 21, 31-52 (1989).



manifestations of non-Western civilizations accurately represent themand that occidental culture is inherently liberal and tolerant.29 Thereality is that non-Western civilizations are quite diverse in practicesand beliefs and that "autonomy and freedom of conscience are notany more indigenous to the West than to the East."3 Moreover,many Westerners "probably not only do not oppose, but actuallyshare with non-Western societies a commitment to community-basedvalues and identity."31 In other words, in all societies there is aspectrum of individualistic and communitarian attitudes,32 andconflicts of values occur within as well as across civilizations.Second, Huntington neglects the authenticity of activists in people'smovements in non-Western societies who espouse human rightswithout rejecting their own culture. Human rights activists from non-Western societies may find it more effective within their culture toseek change at the community level rather than through stateinstitutions, as in the West, but such preferences are a matter ofstrategy based on cultural realities not on the inappropriateness of thehuman rights framework for their struggle for social justice. Formerhuman rights activist and later South Korean President Kim Dae Jungrejected the "Asian values" argument of former Singaporian PrimeMinister Lee Kuan Yew, which he found "not only unsupportable butself-serving."33 For him, the Universal Declaration "reflects basicrespect for the dignity of people, and Asian nations should take thelead in implementing it."34 "The biggest obstacle [to establishingdemocracy and strengthening human rights in Asia] is not its culturalheritage but the resistance of authoritarian rulers and their apo-logists."35

The debate over the cultural bias of human rights has not been laidto rest by these or other voices. A vast amount of official pro-nouncements and scholarly exegesis can be marshaled on either sideof the debate. The question for the purpose of challenging theexcessive distinction between categories of rights is whether this

29. Thomas M. Franck, Is Personal Freedom a Western Value?, 91 Am. J. Int'l L. 593,608 (1997).

30. Id.31. Id. at 604.32. Id. at 605.33. Kim Dae Jung, Is Culture Destiny? The Myth of Asia's Anti-Democratic Values, 73

FOREIGN AFF. 189, 190 (1994).34. Id. at 194.35. Id.

219



claimed bias is related to civil and political rights as being Western,and economic, social, and cultural rights as being non-Western. TheCold War obfuscated the debate as the West used international fora tocriticize the stifling of freedom of expression, religion, movement,assembly, the denial of political rights, and the practice of arbitraryarrest and detention in socialist countries, while the latter denouncedthe contradictions of Western capitalism as responsible for the lack ofeconomic, social, and cultural rights and the prevalence of racialdiscrimination in the West. The reality is, of course, more complex.Most significant for present purposes is the long tradition in the Westof supporting these rights, including Roosevelt's proposing a secondbill of rights to cover them,36 and broad ratification of theInternational Covenant on Economic, Social and Cultural Rights(ICESCR) (the United States being the only major Western countrynot to ratify it). In education and the media, it must be said that theUnited States is behind most countries on developing awareness ofhuman rights, and it is rare to find issues of health, social security,food, and shelter articulated as matters of human rights, except byprogressive social movements. However, a survey shows that mostof the public "'strongly' believe meeting people's basic needs offood, housing, and healthcare should be considered human rights."37

The fact that the U.S. is behind other countries diplomatically doesnot justify the conclusion that culturally Americans do not understandaccess to basic health, education, food, and housing as a matter ofhuman rights. In other Western countries, the problem does not evenarise. In sum, it is not accurate to consider that economic, social, andcultural rights are not suitable to the West due to cultural notions ofthe nature of rights and should therefore be treated differently fromcivil and political rights.

C. Role of the State in Realizing Positive and Negative RightsThe third set of conceptual bases for the distinction between

traditional categories of human rights has to do with the role of thestate and the notion of negative vs. positive rights. According to thisperspective, civil and political rights are attributes of the human

36. See Roosevelt, supra note 13.37. Belden, Russonello & Stewart Research & Commc'n, Human Rights in the U.S.:

Findings from a National Survey, (2007) at 4, available at http://opporttnityagenda.org/files/fieldfile/Human%20Rights%2OReport%20-%202007%20public%20opinion.pdf (last visit-ed Apr.20, 2009).



person with which the state must not interfere, and thus are bestdescribed as "freedoms from state interference" or "droits-attribut,"while economic, social and cultural rights are "claims on the state,"or "droits-cr6ance." Civil and political rights are "negative" insofaras they enjoin the state from interfering in the individual's freedom todo whatever is not harmful to others, whereas economic and socialrights are correlative to positive duties of the state to enable theindividual to do what he or she would like to do.38 The former implyabstention of the state while that latter imply claims against the statefor provision of services.

Although intellectually appealing in its neatness, this distinctiontends to oversimplify the process of realizing rights in practice. Firstof all, considerable intervention by the state is necessary to achievecivil and political rights, including action to ensure that privateparties do not violate the rights of others, and to give agents of thestate the wherewithal to train and equip internal security forces sothey can acquire information and confessions without resorting totorture, and to establish and maintain a system. of courts and publicdefenders' offices necessary for a fair hearing and adequate legaldefense. Merely "abstaining" cannot fulfill the state's duties underthe social contract.

The distinction between positive and negative rights is not thesame as that between negative and positive liberty. In his famousessay on "Two Concepts of Liberty," Isaiah Berlin treated the idea ofnegative liberty as referring to an individual being left to act or be ashe or she pleases without interference of other persons, whereaspositive liberty involved either the collective self-determination ofthe space of freedom, as in a democratic system, or control ormastery of someone else who determines the scope of one's actions.39

Closely related to this distinction was the assumption that positivefreedom was associated with authoritarianism and paternalism, andthe Cold War perception in the West that the Soviet Union wasclaiming to realize positive freedom but was in fact totalitarian and

38. This distinction was brilliantly argued by Quincy Wright in his contribution to acollection of philosophical essays produced by UNESCO to assist the drafters of theUniversal Declaration. Quincy Wright, Relationship Between Different Categories ofHuman Rights, in HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS 143, 147 (UNESCOed., Greenwood Press 1973) (1949).

39. Isaiah Berlin, Two Concepts of Liberty, Inaugural Lecture before the University ofOxford (Oct. 31, 1958), reprinted in ISAIAH BERLIN, LIBERTY 166 (Henry Hardy ed., 2002).



repressive, hence non-liberal. The issue today is not whether tochoose between positive and negative freedom but whether to attachpractical consequences to the distinction between negative andpositive human rights.

Negative rights are somewhat akin to negative liberty in the sensethat their enjoyment requires inaction on the part of others, whereaspositive rights require action on the part of the duty holder. Thuscivil and political rights, such as freedom of speech, the right to vote,or the right to physical integrity, require abstention on the part of thestate from banning speech, restricting voting rights, or abusing theperson of a citizen. Poverty, ignorance, illness, inability to bargainfor the price of one's labor under conditions of exploitation, socialinequalities, stigma, discrimination and similar factors are as con-straining on an individual's liberty to be or act as he or she wishes asbanning a publication or speech or assaulting or arbitrarily detaininga person. The realization of human rights requires positive action tolift such constraints, such as providing education, protecting fromdiscrimination, or regulating the labor market. In this sense,economic, social and cultural rights are instrumental to negativefreedom.

Similarly, there are negative duties implied in the proper real-ization of many economic, social and cultural rights. Article 15 ofthe ICESCR on the right to take part in cultural life and to enjoy thebenefits of scientific progress and its applications refers to "the rightto freedom indispensable for scientific research and creative activ-ity."40 Leaving aside the material conditions necessary for the artistsor scientists to be productive, the freedom to which that paragraphrefers is a negative freedom.

In the 1980s, Henry Shue provided a fairly systematic refutation ofthe claim that there are sharp and significant distinctions betweenpositive and negative rights. For him, "neither rights to physicalsecurity nor rights to subsistence fit neatly into their assigned sides ofthe simplistic positive/negative dichotomy," demonstrating "thatsecurity rights are more 'positive' than they are often said to be" and"subsistence rights are more 'negative' than they are often said tobe," and he concludes that the distinctions, "though not entirely

40. International Covenant on Economic, Social and Cultural Rights art. 15(3), Dec. 16,1966, 993 U.N.T.S. 3.



illusory, are too fine to support any weighty conclusions."41

Rather than seek to redress the balance by enumerating negativefreedoms in ESCR and positive freedoms in CPR, it is more pro-ductive to draw on the practice of the past twenty years ofinterpreting the normative content of all human rights in terms ofthree types of obligations or duties, which are less abstract and moregrounded in practice, namely, the obligations to respect, protect, andfulfill, the latter sometimes subdivided into the duties to facilitate andprovide. While this typology emerged with respect to definingobligations under the ICESCR,42 the obligations approach is evenmore relevant as a framework that applies equally to ESCR and CPRsince it underscores that the state has duties that vary from preventingits agents from committing violations (duty to respect), and holdingthird parties accountable (duty to protect), to extending services (dutyto fulfill) through information (duty to facilitate) and furnishing whatotherwise cannot be obtained (duty to provide). Such duties cannotbe reduced to negative and positive obligations; they lead to a rangeof policy preferences for any right, regardless of category. The banon torture calls for (a) state agents not to torture, (b) the state toprevent private torture, (c) the state to train law enforcement officersto collect information without torture, and (d) considerableinvestment in providing a functioning prosecutorial and penal systemadequate to eliminate the temptation to torture. Similarly, health as ahuman right implies (a) duties on state agents not to discriminate inaccess to health services, (b) regulation over private health providersto meet various exigencies of this right, as well as (c) prevention andpromotion campaigns, and (d) a state duty to provide certain servicesnot met by the private sector or required in circumstances of severedeprivation or epidemic. Clearly, it is far too simplistic to limit therealization of freedom from torture to the negative obligations ((a)above) of state agents and of the right to health to the positiveobligation ((d) above) to provide health services. In many specificinstances the important developments in civil and political rightsmight relate to positive obligations and those in economic, social, andcultural rights to negative duties. There is, of course, merit in thedistinction between state abstention and state intervention as applied

41. HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY 37(2d ed. 1996).

42. See generally M. MAGDALENA SEPOLVEDA, THE NATURE OF THE OBLIGATIONS UNDERTHE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (2003).



to the two categories of human rights; however, there are sufficientcrossovers among positive and negative rights for this distinction notto justify the claim that there is a difference in nature between thetwo groups.

D. Political Ideology Favoring Freedom or EqualityRelated to the previous conceptual basis for the distinction is the

underlying philosophical basis for rights, expressed in terms of"freedom" or of "equality" and the corresponding ideological under-pinnings.

The "revolution of freedom" refers to the historical response to thearbitrary exercise of power by the monarchy in 1 8 th century Europe.It is the powerful idea that underlies both the establishment of theFirst Republic in France and the independence of the Americancolonies from the British Crown in the New World. This is theresponse to the "long train of abuses and usurpations, pursuinginvariably the same Object [which] evinces a design to reduce themunder absolute Despotism" to which the Declaration of Independencerefers. The 1789 French Declaration was based on the belief that"the ignorance, neglect, or contempt of the rights of man are the solecause of public calamities and of the corruption of governments."Out of this tradition there have emerged both the libertarian andliberal sets of political beliefs and action. Adherents of the formerstress that "America was founded on the idea of Liberty; howeveroppressive the present statist government of America is, America andLiberty are one and the same."43 The preoccupation with liberty of18th century France had to do primarily with what the Old Orderlacked: tolerance for ideas (thought, conscience, religion, expression,and the press), parliamentary representation, and fair criminal justice.The most articulate and passionate voices in 1789 were those whodefended liberty defined as "the freedom to do everything whichinjures no one else," according to article 4 of the 1789 Declaration.That text also defined the "natural and imprescriptible rights of man"as "liberty, property, security, and resistance to oppression." (Article2.) The 1793 Declaration defined these rights as "equality, liberty,security, and property," (article 2), and liberty as "the power thatbelongs to man to do whatever is not injurious to the rights of

43. Nation of Liberty Official Website: Home of the Libertarian Revolution, http://www.geocities.com/CapitolHill/Congress/3999 (last visited Apr. 17, 2009).



others," (article 6).'A libertarian analysis of the Universal Declaration by Frank van

Dun accepts the understanding of human rights similar to that of theFrench Declaration of 1789, the American Bill of Rights, andLocke's Second Treatise in UDHR Articles 3, 4, 5, 9, 10, 11, 12, 13,16, and 17, but has serious problems with the economic, social, andcultural rights in Articles 22 through 28. The Universal Declarationmistakenly presents these "simply as human rights, as if they are ofthe same nature and on the same level as other rights, with theirseemingly respectable ancestry," according to van Dun.45 "Anyonefamiliar with the classical doctrine of natural rights," he continues,"will see ... that the UD's distinctive 'rights' are incompatible withthat doctrine. ' 46 The UDHR reads, for him, like "an originalmanifesto of the philosophy of the welfare state. '47 The claims onresources posed by such "rights" are intolerable for the real rightssince "a person's life, liberty, and property are thrown upon theenormous heap of desirable scarce resources to which all people aresaid to have a right. ' 48 Such "rights to" are incompatible in this viewwith natural rights and he therefore rejects the idea "that one's rightsare as unlimited as one's desires, and, thus, are the primary sources ofconflict and disorder."

A more classical liberal approach to human rights, such as thatrepresented by Maurice Cranston, also finds reason to treat CPR asreal rights and ESCR as aspirations.49 It has been the official positionof the government of the United States, alone among Westerndemocracies, to find the whole category of ESCR as so different innature from CPR as not to be human rights at all. The ideologicalsignificance of this position is to reinforce the separation ofcategories and to resist the redistribution objective of the perceivedideological enemy of equality.

The political ideology favoring the "revolution of equality" alsofinds its roots in the French Revolution. That momentous event is a

44. 1793 CONST. arts. 2, 6 (Fr.).45. Frank van Dun, Human Dignity: Reason Or Desire? Natural Rights Versus Human

Rights, 15 J. LIBERTARIAN STUD. 1, 5 (2001).46. Id.47. Id. at 7.48. Id. at 10.49. Maurice Cranston, Human Rights, Real and Supposed, in POLITICAL THEORY AND

THE RIGHTS OF MAN 43-53 (D.D. Raphael ed., 1967).

225



constant reference point for the development of Marxism, whether inThe Jewish Question, The Eighteenth Brumaire of Louis Bonaparte,The Civil War in France, or Critique of the Gotha Program. Marxreferred to the "gigantic broom of the French Revolution of theeighteenth century," which "swept away all these relics of bygonetimes," i.e., "all manner of mediaeval rubbish, seigniorial rights."5

From the grand Socialist History of the French Revolution by Jaur~s51

to the socialist and libertarian Lutte des Classes sous la PremiereR~publique by Daniel Gurrin52 and the writings of Albert Soboul andGeorges Lefebvre, the French Revolution has been a preferredsubject of scholarship for the left, until the revisionism of the lasttwenty years, which was in vogue during the bicentenary in 1989.The historiography of the French Revolution is inseparable from thedevelopment of socialist thought and its critiques. Socialist andsocial democratic ideas galvanized the revolutions of 1848, 1871, and1917. The drafters of the UDHR were aware of those ideas and theprovisions on economic, social, and cultural rights in numerousEuropean and Latin American constitutions.

The "revolution of equality" is indeed that part of the revolutionarytradition that challenged the privileges of those who dominate insociety through titles and wealth. There is, of course, a strongegalitarian theme in the liberal tradition and an abhorrence ofarbitrary abuse of state power among most socialists. Do theirdifferences justify keeping two categories of human rights separate?It is only the extreme views of liberty that would reject equality, andof equality that would suppress freedom; most political philosophieson the right and the left allow for a balancing of both in a broadideological middle-ground between the libertarian rejection of allwelfare as theft, at the one extreme, and the dictatorship of theproletariat at the other. Contemporary human rights continues toprovide legitimate aspirations for greater equality in states built onstrong liberal traditions and for greater freedom in states that haveprovided strong support for the material needs of the population. The"social and international order" to which Article 28 of the Universal

50. KARL MARX, THE CIVIL WAR IN FRANCE, reprinted in part in MODERN POLITICALTHOUGHT: READINGS FROM MACHIAVELLI TO NIETZSCHE 874 (David Wootton ed., 1996).

51. JEAN JAURtS, HISTOIRE SOCIALISTE DE LA REVOLUTION FRAN(;AISE (Albert Sobouled., Editions Socials 1969) (1924).

52. DANIEL GUIRIN, LA LUTTE DES CLASSES SOUS LA PREMIRE RtPUBLIQUE 1793-1797(2d ed. 1968).



Declaration refers is one that presumably would temper the excessesof any regime, whether ideologically to the left or the right; it wouldcall for political prisoners to be released from Cuba, while acknow-ledging that country's high levels of achievement in education andhealth and call for universal health coverage and greater equality ofaccess to quality education in the United States, while hailing theprotections available to citizens against arbitrary exercise of power.The value of a holistic approach to human rights is to favor bothfreedom and equality in proportion to the democratically determinedpreferences of each society. Maintaining separate categories of rightsfor each ideological preference undermines that approach.

II. POLICY-BASED DISTINCTIONS BETWEEN CATEGORIES OFHUMAN RIGHTS

The practical or policy-based distinctions between the twocategories of rights concern implementation, justiciability, violations,and resources. The assumption underlying the separation of rights ofthe UDHR into two covenants was primarily practical, althoughphilosophical distinctions were voiced. The practical reasoning fortreating some rights as categorically different from others began witha consideration of the appropriate means of implementation.

A. ImplementationThus, civil and political rights were deemed to be immediately

enforceable, whereas economic, social, and cultural rights weredeemed to be subject to progressive implementation. The coreobligations set out in Article 2 of each Covenant reflected thisdistinction, the International Covenant on Civil and Political Rights(ICCPR) specifying that "[e]ach State Party to the present Covenantundertakes to respect and to ensure to all individuals within itsterritory and subject to its jurisdiction the rights recognized in thepresent Covenant," and that an effective remedy be provided in caseof violation; and the ICESCR stipulating that "[e]ach State Party tothe present Covenant undertakes to take steps, individually andthrough international assistance and co-operation, especially eco-nomic and technical, to the maximum of its available resources, witha view to achieving progressively the full realization of the rightsrecognized in the present Covenant." This difference in imple-mentation is, moreover, the principal reason why the Commission onHuman Rights decided to draft two Covenants rather than one.

227



However, at the national level, there is little doubt that statesconfront practices and imbedded habits that make it difficult to takethis distinction too literally. Where prosecutors and law enforcementofficials lack training and incentives to abide by human rights rulesgoverning treatment of offenders, the full realization of the rights notto be subjected to torture or arbitrary arrest or detention calls forprogressive measures. The same is true for the independence of thejudiciary and the process of free and fair elections. These institutionsrequire efforts over generations to be up to the task of full respect forthe related civil and political rights. This obvious fact does not meanthat acts of torture, mistreatment, and denial of justice or free and fairelections do not violate national and international norms. They do.But they must be seen in the context of progressive measures taken toimprove the system.

Similarly, the progressive implementation of ESCR is now under-stood by the Committee on Economic, Social and Cultural Rights asrequiring: (a) that the rights in question be exercised withoutdiscrimination;53 (b) that the state comply with a "minimum coreobligation to ensure the satisfaction of, at the very least, minimumessential levels of each of the rights;"54 and (c) that they takeimmediate steps, which "should be deliberate, concrete and targetedas clearly as possible towards meeting the obligations recognized inthe Covenant."55 None of these three requirements is subject toprogressive realization.

Thus the distinction between categories of rights on the basis ofimmediate vs. progressive implementation is only partially accurate.Most scholars and lawyers have accepted the reasoning of theCommittee that rights of both categories imply obligations to respect,protect, promote, and provide. Which of these obligations loomslarge depends on circumstances, not on categorical distinctions.

B. JusticiabilityThe reference to an "effective remedy" in Article 2(3) of the

ICCPR without an equivalent in the ICESCR suggests that judicial

53. U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Econ., Soc. & Cultural Rights,General Comment No. 3: The Nature of States Parties' Obligations, 1, U.N. Doc.E/1991/23/Annex III (Dec. 14, 1990), available at http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?OpenDocument.

54. Id. 10.55. Id. 2.



remedies apply only to civil and political rights, making economic,social, and cultural rights more "programmatic" and "aspirational."In practice, the maturity of the judicial system and the way legislationis drafted determine whether and how claims regarding legallyprotected rights may be litigated, not whether the right protectsindividual autonomy or ensures a social need. Indeed, the sameArticle 2(3) refers to the determination of rights "by competentjudicial, administrative or legislative authorities, or by any othercompetent authority" and only requires States Parties "to develop thepossibilities of judicial remedy; [and t]o ensure that the competentauthorities shall enforce such remedies when granted." Thus theimmediate justiciability of ICCPR rights is not required.

Many ESCR are protected by law, such as access to schools,tenants' rights in housing, payment of benefits under a pension,unemployment or other safety-net schemes, or access to health care.While it is true that the state may not wish to create a cause of actionregarding a service that it is only beginning to put in place or mayconsider that the market will provide the services through privateinsurance schemes or supply and demand in labor or real estate, thecourts or the legislature may-and usually do-allow citizens andsometimes aliens to sue in order to benefit from an appropriateremedy when the state has failed in its obligation to respect, protect,facilitate, or provide. Typically such litigation concerns the duty torespect when the state has failed to provide a mandated service or hasdiscriminated against the plaintiff, or the duty to protect when thestate has failed to prevent a third party, such as a business enterprise,from harming health through pollution or a dangerous product, orfailing to respect mandatory conditions of housing, or destroying ordamaging an object placed under the protection of national heritage,to name obvious examples. In all these cases, the economic, social,or cultural right in question may be considered to be justiciable. Thefailure to provide a remedy, for example, in cases of alleged tortureor prolonged detention without charge, suggests that the justiciabilityof civil and political rights is not always respected, even in advanceddemocracies.

Some confusion might have existed in the first decades followingthe entry into force of the ICESCR, when little comparative researchhad been done on actual case law concerning ESCR. In recentdecades, a vast amount of case law has been collected so as to makeunsustainable the claim that justiciability attaches to CRP but not to

229



ESCR, or not to the same degree. For example, a recent compilationof essays documents nearly 2,000 judgments and decisions fromtwenty-nine national and international jurisdictions covering suchissues as resettlement following eviction, regulation of privatemedical plans, and state support to anti-poverty and illiteracyprograms, and addresses the extent to which economic, social, andcultural rights are justiciable. 6 The special rapporteurs on the rightsto adequate food, education and health have established or referred todatabases of case law in which the rights in question have beenadjudicated. In a general comment on domestic application of theCovenant, the Committee on Economic, Social and Cultural Rightsconsidered that the view that judicial remedies were essential forviolations of CPR but not for ESCR was "not warranted either by thenature of the rights or by the relevant Covenant provisions."57 TheCommittee concluded on this point:

The adoption of a rigid classification of economic, social andcultural rights which puts them, by definition, beyond thereach of the courts would thus be arbitrary and incompatiblewith the principle that the two sets of human rights areindivisible and interdependent. It would also drastically curtailthe capacity of the courts to protect the rights of the mostvulnerable and disadvantaged groups in society. 8

A particularly telling example of the judicial examination of ESCR,including allocation of resources, is provided by the ConstitutionalCourt of South Africa, which decided in the Soobramoney case in1997 that "the state has to manage its limited resources" and, in thiscase of a man suffering kidney failure, would not require the state toprovide renal dialysis under the right to health because to do so "thehealth budget would have to be dramatically increased to theprejudice of other needs which the state has to meet."59 Then, inSouth Africa v Grootboom in 2000, the Court interpreted the right to

56. See SOCIAL RIGHTS JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL ANDCOMPARATiVE LAW (Malcolm Langford ed., 2009); see also THE ROAD TO A REMEDY:CURRENT ISSUES IN THE LITIGATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (JohnSquires, Malcolm Langford & Bret Thiele eds., 2005).

57. See U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & CulturalRights, General Comment No. 9: The Domestic Application of the Covenant, 10, U.N. Doc.E/C.12/1998/24 CESCR (Dec. 3, 1998).

58. Id.59. Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) paras. 28,

31 (S. Aft.).



adequate housing as requiring the state to "provide relief for peoplewho have no access to land, no roof over their heads, and who areliving in intolerable conditions or crisis situations."6 For presentpurposes it is worth highlighting the Court's dictum: "The question istherefore not whether socio-economic rights are jusiticiable under ourConstitution, but how to enforce them in a given case."6 In 2002, theCourt decided, in the landmark Treatment Action Campaign case,that the constitutional guarantee of the right to health required thegovernment to provide to pregnant women a drug known to reducemother-to-child transmission of HIV, noting that the government"has to find the resources" to comply with a court order and "[w]herea breach of any right has taken place, including a socio-economicright, a court is under a duty to ensure that effective relief isgranted."62

The distinction of categories of human rights thus finds aparticularly weak justification on the ground that one category isjusticiable while the other is not. Clearly, the courts adjudicatehuman rights of all types and categories depending on the domesticincorporation of the international standard and the extent to which thelegal status of the right in question renders litigation possible andpracticable, as opposed to other available remedies.

C. ViolationsRelated to the justification of the distinction on grounds of

justiciability is the assumption that it is only appropriate to speak of"violations" with respect to civil and political rights. The argumenthere is that it is appropriate to apply a "violations" approach to civiland political rights, whereas a "programmatic" approach is indicatedfor economic, social, and cultural rights. However, the realization of

60. South Africa v Grootboom 2001 (1) SA 46 (CC) para. 99 (S. Afr.).61. Id. para. 20.62. Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) para. 99 (S.

Aft.). In fact the court went beyond a declaratory order, stating:We thus reject the argument that the only power that this Court has in the presentcase is to issue a declaratory order. Where a breach of any right has taken place,including a socio-economic right, a court is under a duty to ensure that effectiverelief is granted. The nature of the right infringed and the nature of theinfringement will provide guidance as to the appropriate relief in a particular case.Where necessary this may include both the issuing of a mandamus and the exerciseof supervisory jurisdiction.

Id. para. 106 (footnote omitted).



civil and political rights cannot be limited to dealing with violationsand economic, social, and cultural rights can also be violated. Part ofthe justification for the claim that a violations approach is notappropriate for economic, social, and cultural rights is the assumptionthat compliance with these rights is best assessed in terms of theoutcome of programs that are more or less effective in delivering theservices, whereas accountability for civil and political rights is amatter of identifying and punishing those who violate these rights.Certainly, a country that refuses to hold free and fair elections, a lawenforcement department that brutalizes suspects, a security policythat engages in extraordinary rendition, prolonged detention withoutcharge, and torture, is guilty of violations of civil and political rights.But this failure to realize civil and political rights also involvesinadequate training, failure to enact appropriate legislation andsimilar measures for which it may not be easy to identify the duty-holder accountable for the failure to eliminate these abuses from thesystem of criminal justice or the administration of elections. Alongwith accountability for violations attributable to individuals is therequirement that effective preventive programs reduce the incentivesto commit violations, which is best advanced through a cooperativemode of encouraging, cajoling, assisting, or otherwise cooperatingwith state officials to seek improvement of human rights per-formance. The choice between the violations and the cooperationapproach is a tactical matter for other governments, internationalpartners, and civil society organizations to assess. A government thatis willing to accept international assistance and cooperation toimprove the practice of its law enforcement officials may rejectaccusations of responsibility for violations of the rights of detained orincarcerated persons. Without denying the right to redress of allegedvictims of violation, there are advantages to walking through theopen door of cooperation, which may be slammed shut for those whofocus exclusively on public denunciation of violations. Thus, thereare situations in which CPR may be advanced more effectivelythrough the cooperation mode. Similarly, there are situations wherethe promotion of ESCR, normally pursued in the cooperation mode,may require a violations approach. When policies and practices thatare so ill-conceived and rife with corruption that they are the directcause of famine, epidemics of preventable disease, horrendousworking conditions, and similar grave abuses, they cross the line;these acts and omissions are best treated as violations of economic,social, and cultural rights.



This matter was addressed by the Maastricht Guidelines onViolations of Economic, Social and Cultural Rights, drafted by agroup of more than thirty experts who met in Maastricht, theNetherlands, from January 22-26, 1997 at the invitation of theInternational Commission of Jurists (Geneva, Switzerland), theUrban Morgan Institute on Human Rights (Cincinnati, Ohio, U.S.A.),and the Centre for Human Rights of the Faculty of Law of MaastrichtUniversity. More than a decade ago, the experts agreed that it was"undisputed that all human rights are indivisible, interdependent,interrelated and of equal importance for human dignity. Therefore,states are as responsible for violations of economic, social andcultural rights as they are for violations of civil and political rights. 63

The Guidelines insist on treating violations the same for bothcategories of rights: "As in the case of civil and political rights, thefailure by a State Party to comply with a treaty obligation concerningeconomic, social and cultural rights is, under international law, aviolation of that treaty."' The Guidelines also applied the sameconcept of obligations to respect, protect, and fulfill that is used forcivil and political rights, concluding with respect to economic, social,and cultural rights that "[f]ailure to perform any one of these threeobligations constitutes a violation of such rights. '65 They furtherclarified that "a violation of economic, social and cultural rightsoccurs when a State pursues, by action or omission, a policy orpractice which deliberately contravenes or ignores obligations of theCovenant, or fails to achieve the required standard of conduct orresult.

66

In the same spirit, the Guidelines defined the types of actions andomissions that constitute violations of these rights, responsibilities,and remedies, and recommended that "[t]he optional protocol pro-viding for individual and group complaints in relation to the rightsrecognized in the Covenant should be adopted and ratified withoutdelay."67 It took nearly twelve more years for that recommendationto be implemented. On Human Rights Day, December 10, 2008, the

63. International Comm'n of Jurists (ICJ), Maastricht Guidelines on Violations ofEconomic, Social and Cultural Rights, 4 (Jan. 26, 1997), available at http://www.unhcr.org/refworld/docid/48abd5730.html [hereinafter Maastricht Guidelines].

64. Id. 5.65. Id. 6.66. Id. 11.67. Id. 31.



General Assembly finally adopted the Optional Protocol to theInternational Covenant on Economic, Social and Cultural Rights.68

This act is a clear signal that there is no longer an expectation thateconomic, social, and cultural rights need be treated differently fromcivil and political with respect to violations.

D. ResourcesThe final-and perhaps most widely cited-basis for separating

the two categories is that of allocation of resources, according towhich civil and political rights, being negative and implying absten-tion by the state, do not require resources, whereas economic, social,and cultural rights, being positive, are resource-dependent.

However, the weaknesses already discussed of the distinctionbetween negative and positive rights from a philosophical perspectiveare particularly evident when it comes to resources. Comparing thecosts of programs to protect subsistence rights (ESCR) and securityrights (CPR), Henry Shue notes, "Which program was more costly ormore complicated would depend upon the relative dimension of therespective problems and would be unaffected by any respect in whichsecurity is 'negative' and subsistence is 'positive."' 69

Stephen Holmes and Cass Sunstein, in The Cost of Rights: WhyLiberty Depends on Taxes, demonstrate how all rights require taxpayer-funded and government-managed services, whether courts, lawenforcement, administrative agencies, or other institutionalizedguarantees that the contract, property, liability-based, or other rightwill be enforced. This argument cuts both ways for internationalhuman rights. On the one hand, the principal message of their bookthat "private liberties have public costs," and that "all rights arepositive"7 provides a convincing rebuttal to the argument that CPRand ESCR are fundamentally different from the resource perspective.On the other hand, they examine the costs of rights from theperspective of the legal and economic system of the United Statesand are somewhat dismissive of international human rights. The"ostensibly legal rights guarantees" of international human rights

68. Optional Protocol to the International Covenant on Economic, Social and CulturalRights, G.A. Res. 63/117, U.N. Doc. A/RES/63/117 (Dec. 10, 2008).

69. SHUE, supra note 41, at 39.70. STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY

DEPENDS ON TAXES 48 (1999).



instruments are not worthy of consideration "unless subscribingnational states-capable of taxing and spending-reliably supportinternational tribunals, such as those in Strasbourg or The Hague,where genuine redress can be sought when such rights are violated."In practice," they continue:

rights become more than mere declarations only if they conferpower on bodies whose decisions are legally binding (as themoral rights announced in the United Nations Declaration ofHuman Rights of 1948, for example, do not). As a generalrule, unfortunate individuals who do not live under a govern-ment capable of taxing and delivering an effective remedyhave no legal rights.71

Oddly they refer to redress from The Hague, which, if they have thevarious criminal tribunals or the ICJ in mind, does not provide"genuine redress" for individuals. They cite Article 13 of theEuropean Convention on Human Rights for the proposition that therights are "reliably enforced when the subscribing states treat them aspart of domestic law."72 The fact is that most of the treatymonitoring, whether by the regional human rights courts andcommissions or by the U.N. treaty bodies or by special procedures,has to do with domestic incorporation of international human rightsnorms, and many states parties, including poor countries, take veryseriously the need for legal remedies. On this point, the observationsmade above on justiciability respond in part to Holmes' and Sun-stein's dismissal of international human rights regimes that do notmeet their standard of "government capable of taxing and deliveringan effective remedy."

Their presumed doubts that many countries can meet that standardmight be contrasted with their consideration of how the U.S. SupremeCourt interprets the Bill of Rights. They acknowledge that:

some important constitutional rights are plausibly styled asduties of the government to forbear rather than to perform.But even those 'negative rights'-such as prohibition on

71. Id. at 19. One may wonder to what tribunal in The Hague they refer since the ICJand the ICC or other penal tribunals located in that city do not deal with domestic applicationof international human rights law. They probably did not have Dutch courts applying theCovenants in mind, although they do constitute a good example of justicability of ESCRsince the Netherlands, like other countries having a monist system, applies the ICESCRdirectly through its courts.

72. Id. at 237 n.5.



double jeopardy and excessive fines-will be protected only ifthey find a protector, only if there exists a supervisory statebody, usually a court of some kind, able to force its will uponthe violators or potential violations of the right at issue.73

The issue does not even arise in many other jurisdictions since thecourts are expected to deal with allocation of resource issues thataffect the implementation of constitutionally protected ESCR derivedfrom international human rights, as the example from the Consti-tutional Court of South Africa cited above attests.74

In sum, the distinction between CPR and ESCR in internationalhuman rights law on the grounds that, in general, the former are costfree while the latter require state resources has lost its cogency, alongwith the seven other bases for that categorical distinction discussedabove. To conclude, it may be useful to summarize, in the followingtable, the main features which have been used to distinguish the twocategories and the core arguments which have progressivelychallenged that distinction:

73. Id. at 53-54.74. See supra notes 59-62 and accompanying text. There are undeniable difficulties in

enforcing the orders of the South African Constitutional Court but it is by far preferable thathuman rights be protected under the Constitution and treaty obligations, affirmed by thecourts, and to struggle with effective enforcement, than to take as the starting point thathuman rights involving positive duties have no place in the legal system.


2009] THE SEPARATION OF HuMAN RIGHTS INTO CATEGORIES

Features Traditionally Used to Distinguish Civil and Political fromEconomic, Social, and Cultural Rights

Feature Traditional Traditional Rationale for challengingcharacteristic of characteristic of the distinction

civil and economic, social,political rights and cultural rights

(CPR) (ESCR)A. FEATURES MAINLY OF A PHILOSOPHICAL OR CONCEPTUAL NATURE

Permanence Absolute, Relative, responsive All rights emerge in aimmutable to changing historical context and take on

conditions priority status when affirmedas human rights.

Cultural bias Based on Western Based on models of All political systems, whethereconomic and centrally planned monarchy, democracy, orpolitical liberalism socialist system or socialist, provide for

Eastern enlightened constitutionally guaranteedking rights of people or citizens.

Role of the state Negative rights Positive rights Varying degrees of the duties(freedom from state (claims to benefits to respect, protect, and fulfillintervention), free from the state), apply to all rights and makemarkets welfare state the positive/negative

distinction of limited value indefining the role of the state.

Underlying Freedom/autonomy Equality/solidarity Freedom requires both CPRphilosophical and ESCR, and equality mustobjective be assured in relation to

both, although the degree ofredistribution of resourcescan vary.

B. FEATURES MAINLY OF A PRACTICAL OR POLICY-RELEVANT NATURE

Approach to Immediate Progressive Elements of immediate andimplementation implementation implementation of progressive

implementation apply to allrights in varying degrees.

Availability of Justiciable Political or All rights require remediesJudicial programmatic and eventually becomeremedies justiciable as legal redress is

provided.Relation to Violations can be Violations are Both violations andviolations identified and unsuitable to cooperation modes may be

denounced cooperation mode appropriate for any givenright, depending oncircumstances.

Allocation of Cost-free Resources required Resources are needed for theresources (individual (welfare), rights as realization of CPR, and most

freedom), rights as entitlements ESCR can be realized withimmunities minimum investment.



CONCLUSION

A holistic approach to the relations among CPR and ESCR avoidsmisleading categorization of human rights, although the two Coven-ants, each devoted to one of the traditional categories, remain thestandard reference documents. The separation of human rights intotwo categories appears to be discouraged by the Universal Dec-laration of Human Rights and more recent formal texts that supportthis holistic approach. The Universal Declaration, in Article 28,refers to the right to "a social and international order in which therights and freedoms set forth in this Declaration can be fullyrealized." The reference to a "social and international order"suggests a concern for social structures conducive to the realizationof rights that cover the civil, cultural, economic, political, and socialdomains. Such structures imply a holistic framework in which thecumulative effect of realizing all types of human rights is a structuralchange, that is, an altering of the power relations with the society.The addition of the term "international" means that the change inpower relations not only occurs with national societies but also at thelevel of international relations and the international political eco-nomy. That is a reformist and perhaps a revolutionary aspiration inthe sense that full realization of both sets of human rights does implyin most societies alteration of power relations. In the last analysis,the transformation of human rights from their legitimate status ofmorally justified entitlements to rights that are legally enforced andenjoyed in practice, from capability to functioning, is the essentialproject for human rights realization. The "right" to the social andinternational order described in Article 28 does not describe theexisting order but rather the potential order towards which a holisticapproach to human rights aspires.

Various formulations of the holistic approach appear in theDeclaration on the Right to Development,75 the Vienna Declarationand Programme of Action,76 the mandate of the High Commissioner

75. Declaration on the Right to Development, G.A. Res. 41/128, art. 6(2), U.N. Doc.A/RES/41/128/Annex (Dec. 4, 1986) ("All human rights and fundamental freedoms areindivisible and interdependent; equal attention and urgent consideration should be given tothe implementation, promotion and protection of civil, political, economic, social andcultural rights.").

76. Vienna Declaration and Programme of Action, supra note 18, 5 ("All human rightsare universal, indivisible and interdependent and interrelated. The international communitymust treat human rights globally in a fair and equal manner, on the same footing, and with

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for Human Rights," and in expert formulations such as the theMaastricht Guidelines on Violations of Economic, Social andCultural Rights.78 Beyond the reaffirmation that all human rights areinterdependent and interrelated, the holistic approach also recognizesthat both categories require resources, both can involve violations,both require adaptation and often transformation of institutions andpractices, and both are essential for human dignity. The HumanDevelopment Report of the United Nations Development Programmefor the year 2000 (HDR2000) dispels four myths about the twocategories of rights by clarifying that both categories include positiveand negative rights, involve immediate and progressive imple-mentation, require resources, and require quantitative and qualitativeindicators.79 HDR2000 gives examples of how, in practice, theexercise of civil and political rights has been instrumental inempowering poor people and advancing economic, social, andcultural rights. In the context of development, the holistic approachmeans that all human rights, not just the right that appears mostrelevant to the task at hand, must be considered. In urban planning,for example, it is not enough to consider that the allocation ofresources to affordable housing is a contribution to the right toshelter; the planner must ask what the plan will do for the residents'enjoyment of rights to health, food, education, information, work, andeffective remedies, to mention only the most obvious ones. TheOffice of the High Commissioner for Human Rights assumes in itstraining materials for staff and for national human rights institutions

the same emphasis. While the significance of national and regional particularities andvarious historical, cultural and religious backgrounds must be borne in mind, it is the duty ofStates, regardless of their political, economic and cultural systems, to promote and protect allhuman rights and fundamental freedoms.").

77. G.A. Res. 48/141, 3, U.N. Doc. A/RES/48/141 (Dec. 20, 1993) (stating that theHigh Commissioner for Human Rights shall "[b]e guided by the recognition that all humanrights--civil, cultural, economic, political and social-are universal, indivisible,interdependent and interrelated and that, while the significance of national and regionalparticularities and various historical, cultural and religious backgrounds must be borne inmind, it is the duty of States, regardless of their political, economic and cultural systems, topromote and protect all human rights and fundamental freedoms").

78. Maastricht Guidelines, supra note 62, 4 ("It is now undisputed that all humanrights are indivisible, interdependent, interrelated and of equal importance for humandignity. Therefore, states are as responsible for violations of economic, social and culturalrights as they are for violations of civil and political rights.").

79. U.N. Development Programme, Human Development Report 2000, at 93 box 5.5(2000), available at http://hdr.undp.org/en/media/HDR-2000-EN.pdf.



that the two main categories of human rights "are not fundamentallydifferent from one another, either in law or in practice."8

Outside of the circles of academics, bureaucrats, and governmentrepresentatives who adhere to U.N. dogma, there is considerableconfusion regarding the separation of human rights into two cate-gories. Numerous economists still hold the view that the end ofdevelopment is growth and market efficiency, or place an absolutevalue on the free market. They look with suspicion on any govern-ment intervention and find human rights useful only to the extent thatthey protect the right to property, and they find civil and politicalliberties necessary because they are conducive to transparency andaccountability, which contribute to economic efficiency. They woulddeem any use of economic, social, and cultural rights for the purposeof redistribution as confusing rights with desires. Similarly some inthe human rights field consider that only civil and political rights,encapsulating human freedom, are properly human rights and that thepromotion of economic, social, and cultural well-being may be auseful agenda for government policy but not for human rights. Insum, free-enterprise economists and the libertarian or conservativerights theorists stress individual freedom and sanctity of property8'and reject the concept of economic, social, and cultural rights asundermining human freedom and economic efficiency.

The alternative position is that ESCR are as fundamental to humanagency and dignity and as definitional of human existence andfulfillment as CPR. "[W]hen deprived of economic, social andcultural rights," the General Assembly affirmed in 1950, "man doesnot represent the human person whom the Universal Declarationregards as the ideal of the free man."" All governments haveformally recognized both sets of human rights in the Universal

80. OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS,ECONOMIC, SOCIAL AND CULTURAL RIGHTS: HANDBOOK FOR NATIONAL HUMAN RIGHTSINSTITUTIONS 3 (2005).

81. The argument that pro-growth policies based on economic freedom empower thepoor is made by Jean-Pierre Chauffour, in Pro-Human Rights Growth Policies, 7DEVELOPMENT OUTREACH, Oct. 2006, http://www.devoutreach.com/oct06/SpecialReport/tabid/1513/Default.aspx. This former senior economist at the IMF and current economicadvisor at the World Bank has developed these ideas in a recent book published by the CatoInstitute. See JEAN-PIERRE CHAUFFOUR, THE POWER OF FREEDOM: UNITED DEVELOPMENTAND HUMAN RIGHTS (2009).

82. G.A. Res. 421E (V), U.N. Doc. A/1775 (Dec. 4, 1950).

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Declaration and constantly reaffirmed that all human rights areuniversal, indivisible, interdependent and interrelated. The separationduring the Cold War between categories of rights was fraught withideological overtones, most of which have dissipated with the end ofEast-West ideological confrontation. It is true, as David Beethaminsightfully put it:

Although in theory the end of the Cold War could haveprovided an opportunity for ending the sterile oppositionbetween the two sets of human rights, in practice it hasreinforced the priorities of the U.S.A., the country which hasbeen most consistently opposed to the idea of economic andsocial rights.83

He is correct that the United States Governmentbelieves that while the progressive realization of Economic,Social and Cultural rights requires government action, theserights are not an immediate entitlement to a citizen. Sovereignstates should determine-through open, participatory debateand democratic processes-the combination of policies andprograms they consider will be most effective in progressivelyrealizing the needs of their citizens.84

Nevertheless, the U.S. return to multilateralism and membership inthe Human Rights Council under the Obama Administration maydiminish the impact of U.S. exceptionalism regarding ESCR. Manyresponses to concerns expressed by the skeptics, including U.S.government lawyers, may be found in the general comments of theCommittee on Economic, Social and Cultural Rights,85 in debatesamong the leading scholars and practitioners,86 and in the practice of

83. David Beetham, What Future for Economic and Social Rights, 43 POL. Sys. 41, 43(1995).

84. See David Hohman, U.S. Delegate, Statement Before the 61st Commission onHuman Rights: Explanation of Vote (Apr. 15, 2005), available at http://www.us-mission.ch/humanrights/2005/0415Itemi 0L27.htm. U.S. NGOs and most academics do notaccept this interpretation. See, for example, the work of the Center for Economic and SocialRights, http://www.cesr.org, and the Poor People's Economic Human Rights Campaign,www.economichumanrights.org (both last visited Apr. 17, 2009).

85. The texts of the nineteen General Comments issued so far are available athttp://www2.ohchr.org/english/bodies/cescr/comments.htm.

86. See Mary Robinson, Advancing Economic, Social, and Cultural Rights: The WayForward, 26 HuM RTS. Q. 866 (2004); Kenneth Roth, Defending Economic, Social andCultural Rights: Practical Issues Faced by an International Human Rights Organization, 26HuM RTS. Q. 63 (2004).



international institutions and bilateral aid programs that havesuccessfully applied a human rights-based approach to their work inthe fields of education, health, social security, labor, housing, andother domains of economic, social, and cultural rights. In many partsof the world a willingness to work for ESCR adds legitimacy toefforts to promote CPR.

Twenty-first century human rights thinking has evolved beyondthe Cold War divide and "the sterile opposition between the two setsof human rights." The conceptual distinctions based on permanence,cultural bias, the role of the state, and political philosophy have losttheir cogency since rights in both categories build on a sharedunderstanding of core values of freedom, autonomy, equality andsolidarity at a particular historical moment and provide a standard ofachievement that transcends and builds on the best features ofcapitalism and socialism, in a world where neither is feasible in itspure form. The practical grounds for treating the two groupsdifferently based on modes of implementation, including the use ofthe courts, reference to violations, and allocation of resources, havealso lost their cogency since both sets of human rights requireimmediate and progressive measures, both have justiciable andprogrammatic elements, both are advanced by reference to cooper-ation and violations, and both involve the use in varying degrees ofaction by and resources of the state.

The human rights agenda sixty years after the adoption of theUDHR calls for a translation of the rhetorical commitment to aholistic and integrated approach to human rights into the furtherdevelopment of tools of implementation, monitoring, measuring, andthinking common to both sets of human rights. The trends amongtreaty bodies, U.N. agencies, and NGOs are clearly moving in thatdirection. The aim of this article has been to suggest the implicationsof these trends for the restoration of the unity of human rights thathas been put into question since 1951. The essence of human rightsis to define priorities based on what is most valued by the society.The values represented by one set of human rights are no lessvaluable than those of the other, including under times of stress whennational security or economic prosperity are threatened and underattack. Human rights function to provide a bulwark against thetemptation to sacrifice anyone's freedom or subsistence in responseto such stress. Under any given circumstance, the urgency and


2009] THE SEPARATION OF HuMAN RIGHTS INTO CATEGORIES 243

effective means of implementation will vary from one right to thenext. The false dichotomy of ESCR and CPR has outlived itsusefulness. It is time to move on to a more holistic and integratedunderstanding and practice of human rights.


Documents

(,1 2 1/,1( · 10. JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT ADVEN-TURE 40 (1984). 11. ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 42 (1990). Cassese adds